13 November 2008

Amendment 54 Author Defends Work

Colorado Amendment 54, which limits campaign contributions by certain government contracts and certain unions, as well as certain parties related to them, is another of a long string of abysmally drafted and constitutionally dubious initiatives approved by Colorado voters in the ballot box.

It was written by attorney, a partner at Robert M. Liechty, of Cross & Liechty, P.C., in Denver, who has written a guest column in The Denver Post defending the constitutionality of Amendment that he wrote, in advance of looming litigation over its constitutionality. He states, in defense of his work that:

No-bid contracts are awarded without the government putting the contract out to bid, i.e., the work is awarded to a contractor that the county commissioner, for instance, has done business with in the past. This has potential for kickbacks, as in, "If you give me this government contract, I will contribute to your campaign." The people understood the abuse and, even with our opponents spending an estimated $30 million to defeat us, the people approved the Clean Government Amendment while rejecting most of the other amendments.

We applaud The Post's position in its Nov. 7 editorial that "reining in such 'pay to play' practices is a legitimate objective." However, the principal point in the editorial was incorrect: The Clean Government Amendment does not restrict political contributions of union members. It only restricts the principal contract-holder — the union itself, to use the context of The Post's example, or the owner of Joe's Paving, to use another example. The Clean Government Amendment is tailored to the abuse and only restricts the contributions of the principal players who contribute to political campaigns to ensure future business for themselves.

The Clean Government Amendment defines the contract-holder, the person affected by the amendment, as "persons that control 10 percent or more shares or interest in that party; or that party's officers, directors or trustees; or, in the case of collective bargaining agreements, the labor organization and any political committees created or controlled by the labor organization."

There is nothing vague in this definition (as The Post asserted) and we were careful to tailor the amendment to control only the people or entities that abused and benefited from the old system. As the amendment concerns unions, it only affects the union's coffers and leaves the union members, even its leaders, free to contribute as they did before.

Amendment 54 does not restrict the political contributions of all family members of anyone remotely associated with a no-bid contract. (The Post used the brother-in-law of a union janitor as an example.) That would probably be unconstitutional — if it were true. The amendment restricts immediate family members only when the contract-holder is using them as a pass through for the contract-holder himself. We would have been naïve to have allowed a loophole to allow Mr. Big to contribute to the county commissioner through his wife (with a wink). However, any family member of Mr. Big still has the right to donate to any political campaign.

The firefighters, nurses, teachers, and police of Colorado who serve us every day will not be silenced or denied their right to actively participate in the political process. They may lobby, contribute to, and work for any campaign of their choice. The voters did not fall for this propaganda spread by our opposition before, nor will we let their attorneys win by spinning these misconceptions in the courtroom.

The people want to stop the politicians, contractors and unions from taking advantage of their relationships and money to work the system. Those in power do not like such restrictions. But the people have spoken, and we are confident that the judges will uphold their will. Such carefully tailored amendments that express the will of the people are seldom overturned.

I agree that Amendment 54 does not cover union members acting as individuals. But, it does prevent union members for taking political activity collectively, in any matter coordinated or facilitated by their union.

Also, the author's statement notwithstanding, it is not at all obvious from the language that says that Amemdment 54 "persons that control 10 percent or more shares or interest in that party; or that party's officers, directors or trustees; or, in the case of collective bargaining agreements, the labor organization and any political committees created or controlled by the labor organization." that it does not covers union leaders and their family members in the way that it covers business owners and their family members. An equally plausible reading would be that "officers, directors or truseee" of "labor organizations and political committees created or controlled by the labor organization" are covered. The language could have been drafted to make clear another interpretation, but due to sloppy drafting, was not made clear.

Likewise, the language does not clearly limit family members to persons acting as a pass through for a covered business owner. The language in question says:

Because of a presumption of impropriety between contributions to any campaign and sole source government contracts, contract holders shall contractually agree, for the duration of the contract and for two years thereafter, to cease making, causing to be made, or inducing by any means, a contribution, directly or indirectly, on behalf of the contract holder or on behalf of his or her immediate family member and for the benefit of any political party or for the benefit of any candidate for any elected office of the state or any of its political subdivisions.

The proposed reading would be absurd, because it would imply that an unrelated person can act as a pass through and allow a government contractor to particpate. Surely, any strawman donation is prohibited.

Furthermore, the defense by Liechty fails to address the overbreadth of Amendment 54 which prohibits contributions across the board, even when the contribution has no connection to the entity from which the contract is obtained,or the impact that Amendment 54 has on political activity by a huge number of non-profits, colleges and universities in the state. He also does not offer any examples of pay to play laws with similar language being upheld in any other state.

Robert M. Liechty has every right to argue that his shoddy work is valid, and I wouldn't read the Rule of Professioal Conduct for lawyers to prohibit lawyers from drafting ballot issue language that they believe to be unconstitutional, so long as they think that the constitution is wrong and should be interpreted differently. But, the argument he makes is not a very persausive one.

More ominiously, there is a fair inference to be drawn that Liechty was not sloppy in his drafting because he was stupid, but was intstead, sloppy in his drafting because he deliberately wanted to chill political speech by leaving open a broad reading of the Amendment that would criminalize political activity by many people, while holding open the fall back position of a more narrow reading of the Amendment. Liechty is after all, an attorney, not someone like Doug Bruce representating himself in a technical area for which he lacks formal qualifications.

Finally, even as interpreted by Liechty, whose statements as to intent probably don't have much weight at this point anyway, since it is voter intent, and not drafter intent that is really relevant, Amendment 54 retains the serious constitutional flaws described above and not addressed in his guest column, so I stand by my prediction that a court will invalidate it, in whole, or in part.

This won't necessarily be seen as a defeat by Amendment 54's sponsors either, because they managed to burn through $30 million of union political money that might have otherwise been spent to defeat anti-union politicians in the course of the fight.